Citation Nr: 1400215
Decision Date: 01/06/14 Archive Date: 01/23/14
DOCKET NO. 10-36 229 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida
THE ISSUES
1. Evaluation in excess of 10 percent for primary insomnia.
2. Entitlement to service connection for sleep apnea, including as secondary to service-connected primary insomnia.
3. Entitlement to service connection for a skin disorder.
REPRESENTATION
Appellant represented by: Vietnam Veterans of America
ATTORNEY FOR THE BOARD
Hallie E. Brokowsky, Counsel
INTRODUCTION
The Veteran served on active duty from July 1986 to July 1996.
This matter came before the Board of Veterans' Appeals (the Board) on appeal from April 2009 and February 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.
In the April 2009 rating decision, the RO granted service connection for primary insomnia and assigned a noncompensable disability evaluation, effective October 23, 2008, as well as denied the claim for service connection of a skin disorder. In the February 2010 rating decision, the RO denied the Veteran's claim of entitlement to service connection for sleep apnea.
During the appeal, a July 2010 rating decision granted an increased, 10 percent disability evaluation for the Veteran's primary insomnia, also effective October 23, 2008. The Veteran has not indicated that he agrees with the increased rating. Therefore, the grant of a higher rating is not a full grant of the benefit sought on appeal. See AB v. Brown, 6 Vet. App. 35 (1993).
The Virtual VA claims file has been reviewed.
The issue of entitlement to service connection for a skin disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.
FINDINGS OF FACT
1. Throughout the rating period on appeal, the Veteran's primary insomnia was manifested by fatigue that resulted in less than one week lost from work in the previous 12 month period.
2. Sleep apnea was not manifest in service. Sleep apnea is not attributable to service.
3. Sleep apnea is unrelated (causation or aggravation) to a service-connected disease or injury.
CONCLUSIONS OF LAW
1. The criteria for a disability rating higher than 10 percent for Veteran's primary insomnia have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.20, 4.88b, Diagnostic Code 6354 (2013).
2. Sleep apnea was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013).
3. Sleep apnea is not proximately due to or the result of (causation or aggravation) a service connected disease or injury. 38 C.F.R. § 3.310 (2013).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Duties to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.
In this case, the agency of original jurisdiction (AOJ) issued notice letters, dated in November 2008 and September 2009, to the Veteran. These letters explained the evidence necessary to substantiate the Veteran's claims for service connection and an increased rating, as well as the legal criteria for entitlement to such benefits. The letters also informed him of his and VA's respective duties for obtaining evidence. The AOJ decision that is the basis of this appeal was decided after the issuance of an initial, appropriate VCAA notice. As such, there was no defect with respect to timing of the VCAA notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004).
VA also has a duty to assist a veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4).
The Board acknowledges that Veteran's complete service treatment records are unavailable, and when a veteran's service treatment records are unavailable through no fault of his own, the VA's duty to assist, duty to provide reasons and bases for its findings and conclusions, and duty to consider carefully the benefit-of-the-doubt rule, are heightened. Milostan v. Brown, 4 Vet. App. 250, 252 (1993) (citing Moore v. Derwinski, 1 Vet. App. 401, 406 (1991) and O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)).
Nonetheless, the claims file contains the Veteran's available service treatment records, reports of VA and private post-service treatment, and the Veteran's own statements in support of his claims. The Veteran was afforded a VA examination responsive to the claim for service connection of sleep apnea. McClendon v. Nicholson, 20 Vet. App. 79 (2006). The opinion was conducted by a medical professional, following thorough examination of the Veteran, solicitation of history, and review of the claims file. The Veteran was also afforded a VA examination responsive to the claim for an increased rating. The Board has reviewed the examination report, and finds that it is adequate for the purpose of deciding the issue on appeal. The examination report contains all the findings needed to rate the Veteran's service-connected primary insomnia, including history and clinical evaluation.
The Veteran's appeal for a higher evaluation of primary insomnia, is distinguished from the facts in Proscelle v. Derwinski, 2 Vet. App. 629, 633 (1992), where no VA examination was provided during the rating claim, and a veteran specifically stated that his disability "has increased in severity [such] that I rate a higher disability," constituting at least both some assertion by the veteran and some evidence of worsening of disability since the last VA examination. Proscelle, 2 Vet. App. at 632. In the Veteran's case currently on appeal to the Board, there is no evidence of worsening of the Veteran's disability since the 2009 VA examinations, including no assertion by the Veteran of worsening since the last VA examination. The Veteran here does not assert that his primary insomnia has worsened since the March 2009 VA examination; he merely asserts entitlement to a higher disability evaluation. The Veteran has not submitted evidence of worsening, and the evidence of record, including the medical evidence reflecting on the severity of the disability on appeal, does not suggest that the disability on appeal worsened since the most recent VA examinations, or since the most recent VA treatment records. As there is no evidence of worsening since the last VA examination, a remand for a new VA examination is not warranted, and is not required by the VCAA. See Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007) (mere passage of time does not require VA to provide a new medical examination); VAOPGCPREC 11-95 (interpreting that a new examination is appropriate when there is an assertion of an increase in severity since the last examination). The Veteran has been afforded adequate examinations on the issue decided herein. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).
Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). The Board has reviewed the Veteran's statements and medical evidence of record and concludes that there is no outstanding evidence with respect to the Veteran's claims. For these reasons, the Board finds that the VCAA duties to notify and assist have been met.
Disability Evaluation
Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3.
The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994).
Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, the disability has not materially changed and uniform evaluations are warranted.
The Veteran is currently assigned a 10 percent disability rating for primary insomnia by analogy to 38 C.F.R. § 4.88b, Diagnostic Code 6354. See 38 C.F.R. § 4.20 (2013) (when an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but also the anatomical localization and symptomatology, are closely analogous). Under Diagnostic Code 6354, a 10 percent rating is assigned for chronic fatigue syndrome which waxes and wanes, but results in period of incapacitation of at least one but less than two weeks total duration per year; or for symptoms controlled by continuous medication. A 20 percent disability is assigned under this Code for symptoms which are nearly constant and restrict daily activities by less than 25 percent of pre-illness level; or, which wax and wane, resulting in incapacitation of at least two but less than four weeks total duration per year. See 38 C.F.R. § 4.88b, Diagnostic Code 6354.
At the March 2009 VA examination, the Veteran reported that he missed less than one week at his full time job in the past year due to his primary insomnia and resulting fatigue. Although the Veteran reported fatigue due to his poor sleep, the only impact on his employment was that he could not work overtime as a result of insomnia and fatigue. The diagnosis was primary insomnia that causes no more than mild or transient decreases in work efficiency and ability to perform occupational tasks; the Veteran reported that his poor sleep resulted in fatigue, which prohibited him from working overtime.
At the December 2009 VA examination, the Veteran reported the use of Ambien as necessary for sleep.
VA treatment records dated 2003 to 2010 show a history of chronic fatigue syndrome.
A May 2009 treatment note from Jacksonville Heart Sleep Center noted that the Veteran's excessive daytime sleepiness was most likely related to insufficient total sleep time due to maintenance insomnia. In July 2009, the Veteran's daytime fatigue was considered likely due to shift work and poor sleep efficiency.
Upon reviewing these rating criteria in relation to the evidence for consideration, throughout the entire rating period on appeal, the Board finds that the Veteran's primary insomnia is most consistent with his current 10 percent disability rating and that a higher disability rating is not warranted. The evidence of record does not show that he experiences fatigue which restricts activities or which results in incapacitation of at least two weeks per year. At the March 2009 VA examination, the Veteran reported that he missed less than one week at his full time job in the past year. Although the Veteran reported fatigue due to his poor sleep, the only impact on his employment was that he could not work overtime; no impact on his regular full-time employment has been reported. Moreover, he does not require continuous medication; at the December 2009 VA examination, the Veteran reported the use of Ambien for sleep on an as-needed basis. Most significantly, none of the Veteran's private or VA treatment records show that the Veteran missed any time from work or was otherwise incapacitated due to his insomnia and resulting fatigue. Therefore, his symptomatology most closely approximates the criteria for the currently assigned 10 percent disability evaluation, and the Board finds that the preponderance of the evidence is against the assignment of a disability rating in excess of 10 percent for primary insomnia for the entire appeal period. The appeal for a rating in excess of 10 percent is denied.
Extraschedular Considerations
As to consideration of referral for an extraschedular rating, such consideration requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating adequately contemplates the Veteran's disability picture. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether an extraschedular rating is warranted.
The discussion above reflects that the symptoms of the Veteran's primary insomnia are fully contemplated by the applicable rating criteria. As shown above, each of the rating criteria which were addressed in the VA examination report and treatment records and the Veteran's symptoms provided the basis for the disability rating that was assigned. With regard to his primary insomnia, he complains of difficulty sleeping and chronic fatigue as a result of the disability, which was clearly considered and which serves as the basis for his assigned disability rating for his primary insomnia. In any event, the evidence does not reflect that there has been marked interference with employment, frequent hospitalization, or that the Veteran's symptoms have otherwise rendered impractical the application of the regular schedular standards. The Veteran alleged that primary insomnia interferes with his ability to work overtime, but the March 2009 VA examination report indicates no more than mild or transient effects on work efficiency due to fatigue. Therefore, referral for consideration of extraschedular ratings for the Veteran's primary insomnia is not warranted. 38 C.F.R. § 3.321(b)(1).
In the absence of exceptional factors associated with primary insomnia, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).
Service Connection
Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2013). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006).
Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).
Service connection is also warranted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(b).
The Veteran does not have a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) does not apply to the claim for service connection. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).
Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996).
As previously noted, not all of the Veteran's service treatment records are available. Nonetheless, the available records do not show complaints, treatment, or diagnoses related to sleep apnea. The Board acknowledges that the Veteran reported difficulty sleeping at his separation examination and that treatment records indicate treatment for sleep pattern changes.
Private treatment records from the Jacksonville Heart Sleep Center show a diagnosis of mild to moderate obstructive sleep apnea and excessive daytime sleepiness following a May 2009 sleep study.
VA treatment records show complaints of difficulty sleeping and chronic fatigue.
The Veteran was afforded a VA examination in December 2009. An addendum to the report was provided in January 2010. According to the December 2009 VA examination report, the Veteran reported that he has insomnia and cannot get a full night of sleep due to abnormal sleep patterns from service. The Veteran also reported that he takes medication for sleeping and that he was diagnosed with sleep apnea after a civilian sleep study in May 2009; the Veteran stated that he was given a CPAP, but that he could not tolerate it. The Veteran complained of daytime hypersomnolence, snoring, and sleep disruption; he stated that his wife told him that he stops breathing when he sleeps. Following a physical examination and review of the claims file, the Veteran was diagnosed with mild obstructive sleep apnea as per the May 2009 sleep study. The VA examiner found that it was not possible to relate his obstructive sleep apnea to service without resorting to speculation. In the January 2010 addendum, the VA examiner found that the Veteran's sleep apnea is not related to his service-connected insomnia, as insomnia does not cause sleep apnea; there is no pathophysiological basis for the Veteran's claim. She noted that obstructive sleep apnea is a common respiratory disease due to upper respiratory obstruction, mostly found among males ages 18 to 60.
The Veteran alleges that his sleep apnea is related to his service, including as secondary to his service-connected insomnia. The Board acknowledges that the Veteran was treated for a change in sleep patterns in service, and that, since service, sleep apnea has been diagnosed. The Veteran is competent to report that he has obstructive sleep apnea and difficulty sleeping in service, and such statements are confirmed by the record. Jandreau v. Nicholson, 492 F.3d 1372 (2007). However, the weight of the evidence is against the Veteran's claim. The evidence shows that service treatment records do not show any complaints, treatment, or diagnoses of obstructive sleep apnea during service or for many years thereafter. See Kahana v. Shinseki, 24 Vet. App. 428, 439 (2011) (citing Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (Lance, J., concurring) (VA may use silence in the service treatment records as evidence contradictory to a veteran's assertions if the service treatment records appear to be complete and the injury, disease, or symptoms involved would ordinarily have been recorded had they occurred). In fact, the Veteran was not treated for any complaints related to his obstructive sleep apnea during service; the Board notes that the Veteran reported a history of a changes to his sleep patterns in service, and that these complaints have been associated with the Veteran's service-connected insomnia.
Here, there is evidence to the effect that there is obstructive sleep apnea pathology. However, this positive medical evidence to be of little probative value. We note that a close reading establishes that the Veteran's providers at Jacksonville Heart Sleep Center did not establish that the Veteran's obstructive sleep apnea is related to service. Likewise, the Board observes that the Veteran did not relate his sleep apnea symptomatology to his service when he sought treatment for his sleep apnea; the Veteran did not assert a relationship between his sleep apnea and his service until his claim for benefits. See Pond v. West, 12 Vet. App. 341 (1999) (although Board must take into consideration the veteran's statements, it may consider whether self-interest may be a factor in making such statements).
Here, the most probative and credible evidence establishes that the Veteran's obstructive sleep apnea is unrelated to his service or his service-connected insomnia. The December 2009 VA examiner found that the Veteran's obstructive sleep apnea did not develop for many years after service and that, in order to find the Veteran's sleep apnea is related to service requires speculation, which would not provide the required degree of medical certainty. See Bloom v. West, 12 Vet. App. 185, 187 (1999). Additionally, the December 2009 VA examiner found that the Veteran's obstructive sleep apnea was not related to the Veteran's service-connected insomnia. According to the VA examiner, there is no pathophysiological basis for linking insomnia to obstructive sleep apnea.
In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). To the extent that there are lay opinions, including the Veteran's statements, linking the Veteran's obstructive sleep apnea to service, including his service-connected insomnia, the Board finds that the probative value of the general lay assertions are outweighed by the opinion of the December 2009 VA examination report and its January 2010 addendum. The December 2009 VA examination report and January 2010 addendum explained the reasons for the VA examiner's conclusions based on an accurate characterization of the evidence of record; thus, the opinion is highly probative. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (stating that factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion).
In sum, there is no reliable evidence linking the obstructive sleep apnea to service or to service-connected insomnia. Furthermore, there is no reliable evidence of an increase in disability (aggravation) due to a service connected disease or injury. For the foregoing reasons, the preponderance of the evidence is against the claim for service connection for sleep apnea. The benefit-of-the-doubt doctrine is therefore not for application, and the claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009).
ORDER
Entitlement to a disability evaluation in excess of 10 percent for primary insomnia is denied.
Entitlement to service connection for sleep apnea is denied.
REMAND
In this case, the Veteran has not been provided with a VA examination in order to address whether his claimed skin disorder is related to his active military service. In this regard, the Board observes that, although the Veteran's separation examination indicates that he denied experiencing a skin disease, he asserts that he was treated in service for skin complaints related to shaving his beard; in February 2003, he reported that he had a medical profile in service. The Board also observes that the Veteran's full service treatment records are unavailable. Additionally VA treatment records show a history of complaints related to his skin since service; the Veteran has been treated for eczema, complaints of a problem with shaving his beard, tinea, and onychomycosis of the feet. The Veteran has associated his skin disorder to his service. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); Waters v. Shinseki, 601 F.3d 1274, 1277 (Fed. Cir. 2010). Accordingly, the Board finds that the Veteran should be afforded a VA examination regarding his claim for service connection for a skin disorder. See 38 U.S.C.A. § 5103A(d)(1); 38 C.F.R. § 3.159(c)(4) (VA has an affirmative duty to obtain an examination of the claimant at VA health-care facilities if the evidence of record does not contain adequate evidence to decide a claim).
Accordingly, the case is REMANDED for the following action:
1. The Veteran should be afforded a VA examination to determine the nature and etiology of any skin disorder that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file.
The examiner should indicate whether it is as least as likely as not (50 percent probability or more) that any skin disorder is related to service.
The provider is advised that the Veteran is competent to report symptoms, treatment, and diagnoses and that his reports must be taken into account, along with the other evidence of record, in formulating the requested opinions.
A complete rationale should accompany each opinion provided.
2. If, upon completion of the above action, the benefit sought remains denied, the case should be returned to the Board after compliance with requisite appellate procedures.
The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).
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H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs